Eleventh Circuit Court of Appeals - Published Opinions

Thursday, August 18, 2011

Barrington: Affirming Convictions for Inflating Grades

In U.S. v. Barrington, No. 09-15295 (Aug. 11, 2011), the Court affirmed convictions and sentences of a defendant convicted of computer fraud and aggravated identity theft in connection with a scheme to inflate grades of students at Florida A & M University.

The Court rejected Barrington’s challenge to the admission of his prior involvement in changing grades, finding the evidence admissible under FRE 404(b) to prove Barrington’s intent to commit the charged offense.

The Court also rejected the argument that Barrington should have been allowed to cross-examine a government witness about his pending state burglary charge, pointing out that this charge was only “marginally relevant,” and that other cross-examination adequately brought out the witness credibility issues.

Reviewing the issue for “plain error,” the Court rejected the argument that inflated grades did not constitute “a thing of value” for purposes of the federal fraud statutes. The Court found that by changing grades from failing to non-failing, the scheme deprived A&M of additional tuition the students would have paid to retake the classes. In addition, the scheme changed the residencies of students, depriving A&M of the higher tuition that would have been paid by non-resident students.

The Court rejected the argument that the passwords of A&M employees were not personal identity information for purposes of aggravated identity theft. The Court noted that the passwords were unique to the employees and allowed them to access the protected grading system.

Turning to Barrington’s 84 month sentence, the Court rejected the contention that the district court improperly drew an adverse inference, and imposed a higher sentence when, after the district court asked “Do you still maintain that you did nothing wrong?” Barrington remained silent. The Court noted that failure to accept responsibility was an appropriate consideration in the determination of the sentence.

The Court rejected a challenge to the calculation of the “loss” amount based on the cost of students of retaking classes that they would have failed, but for the changed, inflated grades. The Court noted that the district court relied on the cost of tuition for the affected credit hours.

The Court also rejected a challenge to a sentence enhancement based on the use of “device-making equipment”and the production of “unauthorized access devices.” The Court found that the use of key loggers to use usernames and passwords to access identifiable student accounts met the statutory definition.